345 F.

3d 239

Lydia Goulart; Kyle Travers, Plaintiffs-Appellants,

v.
Paul D. Meadows, in his official capacity as Division Chief of
the Calvert County Parks and Recreation Department; Board
of County Commissioners of Calvert County, DefendantsAppellees.
No. 02-1962.

United States Court of Appeals, Fourth Circuit.

Argued: May 9, 2003.
Decided: September 26, 2003.
1
COPYRIGHT
MATERIAL OMITTED ARGUED: Michael Paul Farris, Home
School Legal Defense Association, Purcellville, Virginia, for Appellants. Daniel
Karp, Allen, Karpinski, Bryant & Karp, Baltimore, Maryland, for Appellees.
BRIEF: James R. Mason, III, Home School Legal Defense Association, Purcellville,
Virginia; Jordan W. Lorance, Alliance Defense Fund Law Center, Scottsdale,
Arizona, for Appellants. Victoria Shearer, Allen, Karpinski, Bryant & Karp,
Baltimore, Maryland, for Appellees.
2

Before NIEMEYER and MOTZ, Circuit Judges, and Joseph R. GOODWIN,

United States District Judge for the Southern District of West Virginia, sitting
by designation.

Affirmed by published opinion. Judge GOODWIN wrote the opinion, in which

Judge DIANA GRIBBON MOTZ joined. Judge NIEMEYER wrote an opinion
concurring in part, dissenting in part, and concurring in the judgment.

OPINION
4

GOODWIN, District Judge.

The Board of County Commissioners of Calvert County, Maryland (Calvert

County or the Board) has a policy in place prohibiting the use of its community
centers for private educational instruction intended to meet state educational
requirements. Pursuant to that policy, the Board denied the applications of two
homeschooling mothers, Lydia Goulart and Kyle Travers, to use space at the

Calvert County Northeast Community Center in Chesapeake Beach, Maryland,

for meetings of a geography club and a fiber arts club. Goulart and Travers
brought suit against Calvert County, alleging that the denial of their
applications violated their free speech rights under the First and Fourteenth
Amendments and also violated their right to equal protection of the law under
the Fourteenth Amendment. The district court granted summary judgment to
Calvert County, holding that the plaintiffs' proposed use of the community
centers was not a form of expressive activity protected by the First Amendment.
We disagree, and hold that the plaintiffs' proposed use is afforded First
Amendment protection. We also conclude, however, that the Board's exclusion
of the plaintiffs from the community centers, which we classify as limited
public fora, is viewpoint-neutral and reasonable in light of the purpose of the
centers. It is reasonable for the Board to limit use of the community centers to
recreational and community enrichment activities, and formal private education
is not a use that is consistent with those purposes. We conclude that Calvert
County's exclusion of the plaintiffs' proposed uses does not violate the
plaintiffs' right to free speech or to equal protection under the First or
Fourteenth Amendments. We affirm the order of the district court granting
summary judgment to Calvert County, although under different reasoning.
I.
6

Calvert County operates four community centers directly supervised by the

Division of Parks and Recreation.1 Upon application and approval, Calvert
County residents may use the centers for various purposes set forth in a written
Community Center Use Policy (Use Policy). The Use Policy generally states
that Calvert County has "provided each district with community centers to
afford its citizens a place to participate in activities which benefit the
community as a whole." The Use Policy states that the purpose of the
community centers is to provide a place for: (1) Park and Recreation programs;
(2) meetings of community organizations; (3) large community events; (4) teen
gatherings; and (5) fitness activities. The Use Policy states that the community
centers are available for: (a) recreational uses (birthday parties, baby showers,
receptions); (b) meetings of community organizations; and (c) non-profit
fundraising events. The Use Policy prohibits: (a) business or for-profit
activities; (b) any activity that is illegal, may incite riot or disturbance, or is in
violation of the County's rules and regulations; and (c) possession and
consumption of alcoholic beverages.2

The Use Policy requires written applications for use to be submitted through
the Recreation Coordinator. The Recreation Coordinator has "the right to refuse
or revoke any application not in accordance with the provisions [of the Use

Policy]." Meeting space is allocated on an annual basis and groups are limited
to one meeting per week for a maximum of two hours. The Use Policy has been
modified over time to prohibit private parties, dances, and weddings in the
gymnasiums, which are reserved for athletic purposes, and to establish
"Policies to Facilitate Exclusion of Non-County Residents."
8

Calvert County offers a myriad of courses at the community centers on a wide

variety of topics sponsored by the Parks and Recreation Department, including:
(1) sewing, crochet, knitting, and basket-making (2) porcelain doll making; (3)
sign language for the deaf; (4) drawing, scratch board art, and oil painting; (5)
math tutoring; (6) guitar; and (7) cooking. Calvert County also has permitted
private individuals to teach courses and offer instruction in the community
centers. These activities include: (1) classes teaching English to non-English
speaking people; (2) courses in magnets and ceramic technology; (3) a
workshop on music teaching techniques sponsored by the Music Teachers
Association of Southern Maryland; (4) skin care and nail care classes; (5) baton
twirling classes; (6) a church-sponsored marriage and parenting enrichment
seminar; (7) violin lessons; (8) lessons on reading by the Literacy Council; (9)
theater and drama instruction for youth ages 9-16; (10) CPR and first aid
training; (11) Boy Scouts, Girl Scouts, Cub Scouts, and Brownies meetings;
and (12) Boys and Girls Club activities.

Calvert County's policy prohibiting private educational activities intended to

meet state educational requirements first began in late 1994 as a result of an
application for use of the Mt. Hope Community Center by a for profit private
school called Benjamin Franklin Academy (BFA). Specifically, BFA requested
the use of a room with a chalk board, chairs and desks for at least twenty
people, and separate gender bathroom facilities, for four hours per day, three
days per week. The arrangement was to be temporary until the group could
obtain its own facility for school instruction.

10

On September 9, 1994, Paul Meadows, the Division Chief of the Parks and
Recreation Department, sent an memorandum to the Board regarding BFA's
application to use the Mt. Hope Community Center. In that correspondence,
Meadows recommended that the proposed use be denied on the basis that the
purpose of the center was "to provide recreational opportunities to the
community not to function as a school." Meadows expressed concern that
permitting the proposed use would lead to potential conflicts between "noisy
recreation activities and the need for quiet in a school setting." He also
cautioned that the arrangement could turn out to be a permanent one and that
the school's enrollment might grow and "restrict[] community and recreational
use." Finally, Meadows noted that allowing a private school to operate in the

community center would "send[] the wrong message to the [County] Board of
Education." At its September 1994 meeting, the Board formally denied the
school's application for use of the center, reasoning that "[t]he function of the
facility is to provide recreational activities to the community."
11

Following the Board's refusal to permit BFA to use the community centers for
private educational instruction, individual homeschooling parents began to
apply for use of the community centers for instructional classes for
homeschooled children. After consulting with the County Administrator,
Richard Holler, Meadows began interpreting the Board's decision regarding the
BFA application as precedent for rejecting any application which sought to use
the space for private educational activities for state educational credit. The first
formal articulation of the ban on private educational activities was in an
interoffice memorandum dated October 24, 1995, from Meadows to the
Recreation Coordinators at each center. The memorandum, titled "Policy
Home Tutoring," stated that "home schooling groups are not permitted to use
the community centers," and clarified that the exclusion applied to all "nonBoard of Education affiliated/sponsored schools."

12

On two occasions after October 1995, homeschooling instructional classes used

to fulfill state educational requirements accidentally were permitted in the
community centers. Groups were approved to use the facilities at Northeast
Community Center and Southern Community Center.3 When Meadows became
aware of these approvals, he advised the Recreation Coordinators that the uses
were impermissible and directed them to terminate the use at the end of the
approval cycle.

13

Homeschool groups and private schools are permitted to use Calvert County's
community centers for any purpose unrelated to fulfilling state educational
requirements. For example, Calvert County has permitted the following uses of
the community centers: (1) a formal Christmas dinner for homeschoolers; (2)
membership meetings once a month for parents of homeschoolers; (3) a
Valentine's Day party for homeschooled students; (4) a planning meeting of the
Christian Home Educators Network; and (5) fundraising events for private
schools. The record shows that private, independent, and homeschooled
children are permitted to participate in the activities offered at the Calvert
County community centers. Moreover, private school, independent school, and
homeschooled children have claimed school credit for their participation in
these activities. That is to say, the Board does not permit homeschool
instructors to use the community centers to offer homeschool educational
classes intended to satisfy state educational requirements, but the Board does
not try to prevent individual children from participating in community center

activities and later claiming State educational credit for that activity. This
reflects the Board's general approach to use applications, which focuses on the
applicant and his or her purpose for using the facility, not on the intentions of
the individual participants.
14

The plaintiffs in this case, Lydia Goulart and Kyle Travers, are two
homeschooling mothers and Calvert County residents who independently filed
applications to use space at the Northeast Community Center to conduct private
educational activities to fulfill state educational requirements.4 On June 14,
1999, Lydia Goulart, in the name of "Chesapeake Home Educators," sought to
use rooms in the Northeast Community Center for a geography club. The
application requested rooms for every Tuesday of the school year from 2:304:30 p.m. and indicated that the use was for a "geography club for kids K-2, 3-8
and preschoolers (siblings of older kids) ... [t]he kids will be learning
geography, playing games about geography." The application indicated that
approximately sixty participants were expected. The geography club held one
session, but Mary Lou Johnson, the Recreation Coordinator at Northeast
Community Center, subsequently revoked Goulart's application. Johnson
asserted that Calvert County's policy prohibited homeschoolers from making
"educational" use of the community centers.

15

On October 13, 1999, Kyle Travers submitted an application for use of the
Northeast Community Center, requesting a room "any afternoon each week
through Dec., ... any time in the afternoon for 1-1 1/2 hours" for a "fiber arts
club knitting, crochet, spinning, weaving, etc." The application indicated
that between fifteen and twenty participants were expected. Johnson denied
Travers's application, again citing Calvert County's policy against private
educational classes for state educational credit in the community centers.5

16

Before commencing this lawsuit, counsel for the plaintiffs sent a letter to the
Board asserting that the exclusion of the Goulart's and Travers's proposed uses
was unconstitutional. In response, the Board explained that:

17

The policy to which you object applies to all educational organizations, whether
they are home schoolers, parochial schools or independent private schools.
Community centers are designed and built for the recreational needs of the
community at large. We do not want to devote space in the centers for
educational activities associated with meeting the State requirements for
elementary or secondary education. We are meeting those needs through our
funding of the Calvert County Board of Education. We believe that allowing
the centers to be used for formal education would amount to duplication of
services.

18

On January 31, 2000, the plaintiffs filed suit in the federal district court for the
District of Maryland, alleging that Meadows and the Board violated their right
to free speech under the First Amendment and their right to equal protection
under the Fourteenth Amendment. After a hearing on the parties' cross-motions
for summary judgment, the district court granted summary judgment to the
defendants on August 20, 2002. The district court found that the plaintiffs had
not demonstrated how their proposed use of the community centers teaching
a geography or fiber arts class was expressive conduct within the meaning of
the First Amendment. Accordingly, the district court held that the exclusion did
not implicate the plaintiffs' right to free expression under the First Amendment.
The district court also rejected the plaintiff's equal protection claim. The
district court found that homeschoolers are not a suspect class and that
homeschooling parents do not have a "fundamental right" to insist that the
government make certain benefits available to their children in connection with
their education. Applying rational basis review, the district court held that the
exclusion bore a rational relationship to Calvert County's legitimate
governmental interest in maintaining the recreational character of the
community centers.

19

We first discuss the plaintiffs' free expression claim under the First Amendment
and then turn to their equal protection claim under the Fourteenth Amendment.
We review de novo the district court's grant of summary judgment to the
defendants, viewing the evidence in the light most favorable to the nonmoving
party. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994). Summary judgment is
appropriate when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

II.
20

The First Amendment provides that "Congress shall make no law ... abridging
the freedom of speech." U.S. Const. amend, I.6 The first inquiry a court must
undertake when a First Amendment claim is asserted is whether the plaintiff
has engaged in "protected speech." Cornelius v. NAACP Legal Def. & Educ.
Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). If so,
the court "must identify the nature of the forum, because the extent to which
the Government may limit access depends on whether the forum is public or
nonpublic." Id. After identifying the type of forum, the court "must assess
whether the justifications for exclusion from the relevant forum satisfy the
requisite standard." Id.

21

Before proceeding with our analysis, we pause to clarify some terminology

necessary to discuss the parties' respective claims. In comparing the various

types of educational courses permitted and excluded by the Board, there are at
least two relevant distinctions that recur throughout the discussion. First, we are
asked to distinguish between courses intended to meet state elementary and
secondary educational requirements and courses offered for general community
enrichment. We will refer to the former as "formal educational courses," the
term "formal" indicating that these courses must meet certain standards
established by the State and are intended to culminate in a formal degree a
high school diploma. We will refer to the latter as "informal educational
courses," the term "informal" reflecting the fact that these courses are intended
to enrich and edify the participants but are not tied to particular Stateestablished educational criteria or intended to culminate in a degree. Second,
we are asked to distinguish between formal educational courses offered through
the public schools and formal educational course offered independently of the
public schools. We will refer to the former as "formal public education" and the
latter as "formal private education."7
A.
22

In this case, the district court held that the proposed educational instruction did
not constitute protected speech, and thus was afforded no First Amendment
protection. The court concluded that because the plaintiffs "articulate no
expressive objective in their proposed use of the County's community centers,"
the plaintiffs' proposed teaching activity was not expressive conduct protected
by the First Amendment. On appeal, the plaintiffs contend that the district court
erred by excluding their proposed use from First Amendment protection. The
district court began its analysis with Justice O'Connor's concurring opinion in
Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d
462 (1984). In Roberts, Justice O'Connor stated that "protected expression may
also take the form of quiet persuasion, inculcation of traditional values,
instruction of the young, and community service." 468 U.S. at 636, 104 S.Ct.
3244 (O'Connor, J., concurring) (emphasis added). The district court pointed
out that this passage appeared in a discussion of the difficulties of determining
"when a particular association of persons is predominantly engaged in
expression." Id. at 637, 104 S.Ct. 3244. In answering this question, Justice
O'Connor contrasted activities with a particular expressive aim, such as "
[l]awyering to advance social goals," with activities lacking an expressive goal,
such as "ordinary commercial law practice." Id. at 636, 104 S.Ct. 3244 (citing
NAACP v. Button, 371 U.S. 415, 429-430, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963);
Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59
(1984)). The district court reasoned that to determine whether a given instance
of "instruction of the young" is protected by the First Amendment, one must

pursue a similar analysis regarding the expressive aims of the instruction in

question. The court concluded that the proposed instruction in this case had no
unique expressive aim, and thus was not afforded First Amendment protection.
23

While the district court's analysis of Justice O'Connor's opinion in Roberts has
some force, we ultimately disagree. The Roberts decision involved the degrees
of First Amendment protection afforded to voluntary associations, not to "pure
speech" activities. Specifically, in Roberts the Court rejected a claim by the
United States Jaycees that the Minnesota Human Rights Act, which compelled
local chapters of the Jaycees to accept women as members, violated the
Jaycees' First Amendment associational rights. Id. at 612, 104 S.Ct. 3244.
Accordingly, the examples given in Justice O'Connor's concurring opinion
pertain to the question of whether an "association's activity is predominantly
protected expression." Id. at 636, 104 S.Ct. 3244 (emphasis added).
Determining whether the conduct of a particular association amounts to
protected expression is a different and more difficult question than determining
whether a speech act is a form of protected expression. "Expressive conduct
enjoys less protection than does pure speech and restrictions on its exercise are
more likely to be constitutionally permissible." Steakhouse, Inc. v. City of
Raleigh, 166 F.3d 634, 637 (4th Cir.1999). While the Supreme Court has held
that "it is the obligation of the person desiring to engage in assertedly
expressive conduct to demonstrate that the First Amendment even applies,"
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n. 5, 104 S.Ct.
3065, 82 L.Ed.2d 221 (1984) (emphasis added), the same is not true of a person
desiring to engage in what can be more appropriately classified as "pure
speech." The plaintiffs rightly point out that their proposed uses teaching a
geography class and a fiber arts class "involve the transmission of
knowledge or ideas by way of the spoken or written word speech." Because
speech is the "activity" in question here, we reject the notion that the plaintiffs
must affirmatively prove the uniquely expressive nature of that speech.

24

The Supreme Court, quoting the Journals of the Continental Congress, has
stated that the notion of free speech includes "`the advancement of truth,
science, morality, and arts in general....'" Roth v. United States, 354 U.S. 476,
484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (quoting 1 Journals of the
Continental Congress 108 (1774)). Other courts have similarly indicated that "
[e]ven dry information, devoid of advocacy, political relevance, or artistic
expression, has been accorded First Amendment protection." Universal City
Studios, Inc. v. Corley, 273 F.3d 429, 446 (2d Cir.2001). We conclude that the
plaintiffs' proposed use of the community centers for instructing children on the
topics of geography and fiber arts is a form of speech protected under the First
Amendment. See Wilson v. Chancellor, 418 F.Supp. 1358, 1362 (D.Or.1976)

("A teacher's teaching is expression to which the First Amendment applies.").

Accordingly, Calvert County's refusal to permit the plaintiffs' activities in its
community centers is subject to First Amendment scrutiny.
B.
25

The Supreme Court has adopted forum analysis as the means of analyzing
restrictions placed on private speech that occurs on government property. Ark.
Educ. Television Comm'n v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633, 140
L.Ed.2d 875 (1998); Sons of Confederate Veterans, Inc. v. Comm'r of Va. Dep't
of Motor Vehicles, 288 F.3d 610, 622 (4th Cir.2002), reh'g en banc denied, 305
F.3d 241 (4th Cir.2002). The three recognized types of fora are the traditional
public forum, the nonpublic forum, and the designated or limited public forum.
Forbes, 523 U.S. at 677, 118 S.Ct. 1633; Warren v. Fairfax County, 196 F.3d
186, 193 (4th Cir.1999) (en banc).

26

The first category of government property, the traditional public forum, is a

place that "by long tradition or by government fiat ha[s] been devoted to
assembly and debate." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460
U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).8 The government may not
prohibit all expressive activity in a traditional public forum, and content-based
restrictions on speech are valid only if they are narrowly tailored to serve a
compelling state interest. See Perry, 460 U.S. at 45, 103 S.Ct. 948. "The state
may also enforce regulations of the time, place, and manner of expression
which are content-neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of
communication." Id.

27

The second category of government property, the nonpublic forum, is not open
by tradition or designation to the public for expressive activity. Id. at 46, 103
S.Ct. 948; Cornelius, 473 U.S. at 803, 105 S.Ct. 3439. The government "can
restrict access to a nonpublic forum `as long as the restrictions are reasonable
and [are] not an effort to suppress expression merely because public officials
oppose the speaker's view.'" Forbes, 523 U.S. at 677-78, 118 S.Ct. 1633
(quoting Cornelius, 473 U.S. at 800, 105 S.Ct. 3439). "Control over access to a
nonpublic forum can be based on subject matter and speaker identity as long so
the distinctions drawn are reasonable in light of the purpose served by the
forum and are viewpoint neutral." Cornelius, 473 U.S. at 806, 105 S.Ct. 3439;
see also United States v. Kokinda, 497 U.S. 720, 730, 110 S.Ct. 3115, 111
L.Ed.2d 571 (1990) (O'Connor, J., plurality op.). The Supreme Court has
placed many types of government "property" in this category, including open
areas of a military base,9 household mail boxes,10 a public school's internal mail

system,11 the federal government's annual charity drive,12 a public high school
newspaper,13 sidewalk areas around a post office,14 airport terminals,15 and a
televised debate between candidates for public office.16
28

The third category of government property, the designated public forum, is

property which the government has opened for expressive activity to the public,
or some segment of the public. Warren, 196 F.3d at 193 (citing Forbes, 523
U.S. at 677, 118 S.Ct. 1633). A designated public forum can only be created by
"purposeful government action" in which "the government must intend to make
the property `generally available.'" Forbes, 523 U.S. at 678, 118 S.Ct. 1633
(quoting Widmar v. Vincent, 454 U.S. 263, 264, 102 S.Ct. 269, 70 L.Ed.2d 440
(1981)). If the government "excludes a speaker who falls within the class to
which a designated public forum is made generally available, its action is
subject to strict scrutiny." Forbes, 523 U.S. at 677, 118 S.Ct. 1633. The
Supreme Court has determined that a number of government properties fall
within this category, including university meeting facilities generally open for
use by student groups,17 a school board meeting open to the public,18 and a
municipal auditorium and city-leased theater designed for and dedicated to
expressive activities.19 There is some confusion over the terminology used to
describe this third category, as the Supreme Court and lower courts have also
used the term "limited public forum." See Good News Club v. Milford Cent.
Sch., 533 U.S. 98, 106, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001); Rosenberger
v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132
L.Ed.2d 700 (1995); Cornelius, 473 U.S. at 799-802, 105 S.Ct. 3439; Perry,
460 U.S. at 47-48, 103 S.Ct. 948. When the government has established a
limited public forum, the government "is not required to and does not allow
persons to engage in every type of speech." Good News Club, 533 U.S. at 106,
121 S.Ct. 2093. The government "may be justified `in reserving [its forum] for
certain groups or for the discussion of certain topics.'" Id. (quoting
Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510) (alteration in original). To date,
the Supreme Court has recognized two types of government property that
clearly are limited public fora: public school facilities during after school
hours 20 and a student activities fund of a public university.21

29

This court addressed the relationship between designated and limited public
fora in Warren v. Fairfax County, 196 F.3d 186 (4th Cir.1999) (en banc). In
Warren, we treated the terms "designated public forum" and "limited public
forum" as two names for the same forum. Id. at 193 ("The final category [is the
s]o-called `designated public fora' (often called `limited public fora')"). Using
the terms "designated" and "limited" interchangeably, we explained that "[a]
designated public forum can be opened only to a limited class of speakers or for
limited topics." Id.

30

When a particular forum is classified as a designated/limited public forum, "

[t]wo levels of First Amendment analysis" apply: the "internal standard" and
the "external standard." Id. at 193-94. The "internal standard" applies to
situations where "`the government excludes a speaker who falls within the class
to which a designated [limited] public forum is made generally available.'" Id.
at 193 (quoting Forbes, 523 U.S. at 677, 118 S.Ct. 1633) (alteration in Warren).
In this situation, the government's "`action is subject to strict scrutiny.'" Id. at
193 (quoting Forbes, 523 U.S. at 677, 118 S.Ct. 1633). In other words, "as
regards the class for which the forum has been designated, a limited public
forum is treated as a traditional public forum." Id. On the other hand, the
"external standard" "places restrictions on the government's ability to designate
the class for whose especial benefit the forum has been opened." Id. at 194. We
explained that "once a limited forum has been created, entities of a `similar
character' to those allowed access may not be excluded." Id. at 194 (citing, inter
alia, Perry, 460 U.S. at 48, 103 S.Ct. 948). The government's designation of the
class for the "external standard" is "subject only to the standards applicable to
restrictions on speakers in a nonpublic forum," namely that "the selection of a
class by the government must only be viewpoint neutral and reasonable in light
of the objective purposes served by the forum." Id.

31

In this case, the defendants first contend that the community centers are
nonpublic fora. The government may "retain nonpublic forum status by
allowing selective, permission-only access to the forum." Warren, 196 F.3d at
193. To remain a nonpublic forum, "[t]he granting of such permission must be
contingent upon non-ministerial judgments." Id. (citations omitted). Because
Calvert County requires an application for use of the community centers, the
defendants assert that the community centers have retained their nonpublic fora
status.

32

We are not persuaded that the community centers at issue in this case are
nonpublic fora. First, the Recreation Coordinators at the community centers
make only ministerial judgments because they are allowed to deny an
application only if it is "not in accordance with the provisions outlined in the
[Use Policy]." In other words, if a proposed user falls within the confines of the
Use Policy, the application will be granted. Here, permission to use the
community centers is not "selective," but is "granted as a matter of course" to
all individuals or groups who fall within the Use Policy. Perry, 460 U.S. at 47,
103 S.Ct. 948. In addition, Calvert County has intentionally made the
community centers generally available to certain types of expressive activity.
See Forbes, 523 U.S. at 677, 118 S.Ct. 1633. For example, the community
centers are open to a wide variety of instructional activities, such as courses in
sewing, basket-making, sign language for the deaf, math tutoring, English for

non-English speakers, and marriage and parenting enrichment. We classify the

community centers as designated or limited public fora and will analyze the
restrictions here accordingly.22
C.
33

Having identified the Calvert County community centers as limited public fora,
we must determine whether to apply the internal or external standard to the
exclusion of the plaintiffs. The plaintiffs argue that because the community
center permits public classes on such a wide variety of topics, homeschoolers
using the facilities for homeschooling classes fall "within the class to which
[the] designated [limited] public forum is made generally available.'" Warren,
196 F.3d at 193 (quoting Forbes, 523 U.S. at 677, 118 S.Ct. 1633 (alterations in
Warren)). Accordingly, they argue that we should examine the exclusion under
the internal standard strict scrutiny. Id. The Board, in contrast, argues that
the plaintiffs' proposed use private education intended to meet state
education requirements does not fall within the class of uses for which the
community centers have been designated. Accordingly, the Board argues that
its decision to exclude the plaintiffs' proposed use is governed by Warren's
external standard viewpoint-neutrality and reasonableness in light of the
purpose of the forum.

34

In Warren we explained that "once a limited forum has been created, entities of
a `similar character' to those allowed access may not be excluded." Id. at 194
(quoting Perry, 460 U.S. at 48, 103 S.Ct. 948 (holding that in a limited public
forum, "the constitutional right of access ... extend[s] only to other entities of
similar character.")). Accordingly, to determine which standard to apply to the
Board's exclusion of the plaintiffs in this case, we must determine whether
homeschoolers as a group are an entity of a "similar character" to those groups
permitted to use the community centers. Of course, homeschooling parents and
children are not generally barred from using the community centers, and in fact
have been permitted to use the centers for, among other things, a formal
Christmas dinner and monthly membership meetings. Rather, the Board has
denied access to homeschoolers only when they sought to use the community
centers for a particular purpose formal private education intended to satisfy
state educational requirements. It is more accurate, then, to ask whether formal
private education is an activity of a "similar character" to those activities
permitted by the Board.

35

Determining whether two different activities are of a "similar character" is,

admittedly, a somewhat amorphous inquiry two different activities are
always different in certain ways and similar in other ways. Here, the uses

proposed by the plaintiffs are similar in many respects to some of the uses
permitted by the Board both are educational classes covering similar topics
and offered (at least in part) to children. On the other hand, the uses are
different in at least one important respect the permitted classes are intended
for general public enrichment, whereas the plaintiffs' proposed classes are
intended to fulfill state educational requirements. The "similar character"
standard asks us to determine which of these various indicia of similarity is the
relevant one. If the content of the classes is the relevant factor, then the
plaintiffs' proposed use is of a "similar character" to those classes that are
permitted. On the other hand, if formal versus informal education is the
relevant factor, then the plaintiffs' proposed use is not of a "similar character" to
the permitted uses.
36

We conclude that the purpose of the limited forum in question should serve as a
touchstone for determining the relevant indicia of similarity between two
proposed uses. See Calash v. City of Bridgeport, 788 F.2d 80, 84 (2d Cir.1986)
(in light of stadium's purpose as a venue for "civic, charitable, and non-profit
speakers," for-profit music concerts are not of a similar character as non-profit
music concerts). If the difference between two proposed uses is unrelated to the
purpose of the forum, then that difference should not serve as a basis for
distinguishing between two otherwise-similar entities. Consider if the director
had approved an application by one Boy Scout troop and denied the application
of another on the ground that the leader of the first troop was the director's
brother. The difference between the two troops the troop leader's familial
relationship to the director is completely unrelated to the purpose of the
community centers, and thus would not be a relevant factor for determining
whether or not the two groups were of a "similar character." But if the
difference between two proposed uses bears some relationship to the purpose of
the facility, then it would make sense for the government to use that difference
as a basis for drawing boundaries. We proceed to consider, in light of the
limited purpose of the community centers, whether the plaintiffs' proposed use
is of a "similar character" to the permitted uses.23

37

The defendants argue that the restrictions in the Use Policy and in their de facto
policy against private instruction of children intended to meet state educational
requirements are reasonable because the purpose of the community centers is to
provide meeting space and recreational and informal enrichment opportunities
for the community. In addition to the stated purposes of the community centers,
Calvert County acknowledges that the community centers are also used for
informal community education and enrichment courses, such as courses in
English as a second language, sewing, basket-making, drawing, oil painting,
and math tutoring. Calvert County made clear at oral argument that it plans to

continue permitting informal community educational activity, so long as it is

not intended to meet state educational requirements. Whether stated or not,
then, one purpose of the community centers is to provide a venue for informal
community education and enrichment courses.
38

The plaintiffs argue that the policy is not reasonable because the nature of the
activities in question are identical in all respects relevant to the demands placed
on the community centers. To an observer, classes intended for general
community enrichment and classes intended to satisfy state education
requirements might well appear completely indistinguishable. Because the
prohibited activity is essentially indistinguishable from the permitted activity,
the plaintiffs argue, it cannot be reasonable to permit one and prohibit the
other. There are two responses to this argument.

39

First of all, the similarity of the content of two proposed speech activities does
not always mean that both must be treated the same. The Supreme Court has
repeatedly held that distinctions based on the status of the speaker can be a
permissible way to limit the scope of the forum. For example, in Forbes, a
state-owned public television broadcaster excluded Forbes, a candidate for
political office, from participating in a broadcast of a debate among other
candidates for the same office. 523 U.S. at 669, 118 S.Ct. 1633. Despite the
fact that the speaker sought to engage in precisely the same type of speaking
activity espousing his political views as those permitted to speak, the
Court held that it was permissible for the broadcaster to exclude the speaker
based on his status as a candidate with little public support. Id. at 683, 118 S.Ct.
1633. Likewise, in Perry, the Court held that it was permissible for a school
district to deny access to the school's internal mail system to a union that did not
serve as the bargaining representative of the school employees, even though the
school permitted the union that did represent the employees to use the mail
system. 460 U.S. at 48-53, 103 S.Ct. 948. The rival union in Perry sought to
engage in the exact same type of activity as the employees' exclusive
bargaining representative using the school system's internal mail facilities to
communicate with school employees. Id. at 39, 103 S.Ct. 948. Despite the
similarity in the proposed uses, the school board was permitted to distinguish
between the two unions based on their status whether or not they currently
served as the exclusive bargaining representative of the teachers. Id. at 49, 103
S.Ct. 948. It is true that in both Forbes and Perry the fora in question were
nonpublic fora. Forbes, 523 U.S. at 679-80, 118 S.Ct. 1633; Perry, 460 U.S. at
46, 103 S.Ct. 948. But in a limited public forum, just as in a nonpublic forum,
the government "may be justified in `reserving [its forum] for certain groups or
for the discussion of certain topics.'" Good News Club, 533 U.S. at 106, 121
S.Ct. 2093 (quoting Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510). And as

with a nonpublic forum, "the state's power to restrict speech ... [in a limited
public forum] must not discriminate against speech on the basis of viewpoint,
and the restriction must be reasonable in light of the purpose served by the
forum." Id. at 106-07, 121 S.Ct. 2093 (quotations and citations omitted).
Accordingly, in determining how the government may limit the purpose of a
forum that it has created, we find Forbes and Perry instructive. These cases
illustrate that the government may draw permissible status-based distinctions
among different classes of speakers in order to preserve the purpose of the
forum, even when the proposed uses by those inside the permitted class of
speakers and those outside the permitted class of speakers are quite similar.
40

The second response to the plaintiffs' argument about the similarity of the
proposed instructional activities is that despite the similarities, the permitted
and prohibited activities are different in one important respect: the permitted
activities are informal educational classes intended for community enrichment,
whereas the prohibited activities are formal private educational classes intended
to fulfill state educational requirements. Compare this distinction with the
County's prohibition on for-profit business activities. The plaintiffs concede
that the Board's exclusion of for-profit activities is consistent with the First
Amendment. See, e.g., Calash v. City of Bridgeport, 788 F.2d 80, 84 (2d
Cir.1986). The "for-profit" exclusion, like the "private formal education"
exclusion, shows how expressive activity of the very same nature can be
rendered permissible or impermissible, in light of the purpose of the forum,
depending on the purpose behind that activity.

41

The Second Circuit's decision in Calash illustrates this principle in the forprofit/not-for-profit context. In Calash, the court held that the government
could permissibly exclude a for-profit music concert from a public stadium
where not-for-profit concerts were held. Id. at 84. The concert promoter had
applied to the City of Bridgeport's Parks and Recreation Board for permission
to hold a for-profit Beach Boys concert at the stadium. Id. at 81. The Board
denied the application, citing its policy of "restricting use of the facility to civic,
charitable and non-profit entities." Id. The promoter then re-applied to hold the
same concert, this time claiming that all proceeds would benefit a local zoo. Id.
The Board, unwilling to take the promoter at his word, denied the application
without prejudice but invited the promoter to renew the application "if he
provided the Board with information about his finances and prior experience
and the arrangement with the zoo." Id. The promoter instead elected to bring
suit. The Second Circuit classified the auditorium as a nonpublic forum and
upheld the exclusion. Id. at 84. The court also observed, however, that even if
the auditorium were a limited public forum, the exclusion would nonetheless
have been justified based on the purpose of the forum, which was limited to

"civil, charitable, and non-profit" concerts. Id. Thus, the relevant difference
between permitted concerts and this prohibited concert was the purpose of the
concert promoter that is, whether the concert had a for-profit purpose or a
"civil, charitable, [or] non-profit" purpose. Id. If the promoter had been willing
to prove his non-profit purpose, it appears that he would have been permitted to
use the facility. Calash demonstrates how a speaker's purpose can, in certain
circumstances, serve as a relevant basis for the government to restrict access to
a limited public forum, even when the proposed uses are otherwise identical.
Here, as in Calash, the Board has decided that the community centers are not to
be used to subsidize for-profit business, and the plaintiffs agree that this
judgment is reasonable and permissible.
42

It seems equally reasonable for the County to restrict its support for formal
education to the public schools. In its support of the public schools, the County
has provided a venue for children to receive educational instruction intended to
meet state educational requirements. The County does not force children to
participate in the public schools, and some children opt out of the system,
choosing instead to attend private schools or participate in homeschooling in
order to meet their state educational requirements. Having provided a venue for
children to meet their state educational requirements, however, the County has
decided not to allocate community center resources in pursuit of this same goal.
That is to say, the County has decided that its community centers should not be
used for private education intended to meet state educational requirements. This
policy does not strike us as hostile to private education or homeschooling any
more than the County's policy against for-profit activity in the community
centers strikes us as hostile to private business.

43

Accordingly, we conclude that there is a relevant distinction, in light of the

forum's purpose, between those courses that the Board has permitted and the
plaintiffs' formal private education courses. Given this relevant distinction
between the plaintiffs' proposed use and the uses permitted by the Board, the
two uses are not of a "similar character," and the Board's exclusion of the
plaintiffs does not trigger strict scrutiny review. Instead, we will inquire
whether the Board's exclusion of the plaintiffs is reasonable in light of the
purpose of the forum and whether it is viewpoint-neutral.

D.
1.
44

We first examine whether the Board's restriction on expression in the

community centers, which we have classified as limited public fora, are

"reasonable in light of the purpose served by the for[a]." Cornelius, 473 U.S. at
806, 105 S.Ct. 3439; see also Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510.
The government's decision to restrict access to a limited public forum "need
only be reasonable; it need not be the most reasonable or the only reasonable
limitation." Cornelius, 473 U.S. at 808, 105 S.Ct. 3439 (emphasis in original).
Reasonableness in this context is assessed "in light of the purpose of the forum
and all the surrounding circumstances." Id. at 809, 105 S.Ct. 3439. In other
words, "[c]onsideration of a forum's special attributes is relevant to the
constitutionality of a regulation since the significance of the governmental
interest must be assessed in the light of the characteristic nature and function of
the particular forum involved." Heffron v. Int'l Soc'y for Krishna
Consciousness, Inc., 452 U.S. 640, 650-51, 101 S.Ct. 2559, 69 L.Ed.2d 298
(1981).
45

As noted above, our conclusion that there is a relevant distinction between the
plaintiffs' proposed courses and the courses permitted by the Board already
involved an examination of the reasonableness of the plaintiffs' exclusion in
light of the purpose of the forum. Our prior discussion, which we will not
restate here, suggests that the Board's distinction is reasonable. The plaintiffs,
however, present an additional argument that we have not previously addressed
as to why the Board's exclusion of their proposed classes is unreasonable in
light of the purpose of the forum. We now turn to that argument.

46

The plaintiffs argue that Calvert County's exclusion is unreasonable because

homeschool students can claim indeed, have claimed credit after the fact
for classes taken at the community centers. Calvert County concedes that it
does not try to prevent homeschool students from attending community
enrichment courses and then, after the fact, filing the necessary papers to claim
credit toward meeting their state educational requirements. Because of this, the
plaintiffs argue, classes taught with the intent to meet state educational
requirements must also fall within the purpose of this forum. The plaintiffs'
argument has some force, for it highlights the very fine line that Calvert County
draws with its current policy: under the policy, the community center may be
used by children attending community enrichment classes, even when those
students later claim state educational credit, but the center may not be used to
hold classes intended to satisfy state educational requirements. While this line is
admittedly a fine one, we conclude that Calvert County's policy nonetheless
reasonably preserves the intended purpose of the community centers.

47

Calvert County's implementation of its policy is a reasonable, cost-effective

approach to enforcing the distinction between informal community enrichment
and formal private education. Calvert County has created a relatively simple

application process that facilitates the quick and inexpensive allocation of

community center resources, while allowing the County to preserve the limited
purposes for which the community center was intended. If we were to require
Calvert County to ensure that no participant in any community center activity
ever received state educational credit, we would be imposing an onerous
administrative burden that could result in Calvert County closing its community
centers to all educational activities. This would lead to the unfortunate result of
"less speech, not more." Forbes, 523 U.S. at 680, 118 S.Ct. 1633. The Supreme
Court has explained that permitting selective access to government fora for
speech "encourage[s] the government to open its property to some expressive
activity in cases where, if faced with an all-or-nothing choice, it might not open
the property at all." Id. For this same reason, we refuse to require Calvert
County to achieve administrative perfection in order to draw a boundary that we
otherwise deem permissible. Calvert County's failure to pursue expensive and
unfeasible methods to prevent after-the-fact claiming of school credit does not
belie its stated purpose of preserving the community enrichment purpose of the
community centers.
48

The same boundary-drawing problem could just as easily appear in other uses
of the community center. For example, the record shows that the community
centers have been used for recreational card-playing. Consider an application
from a group of card-players indicating that the participants seek to use the
community center for their weekly high-stakes poker match. The record reflects
that gambling is an activity prohibited at the community center. Even if the
County strictly enforced its policy against gambling, it would not be difficult
for a group of card players to engage in a "recreational" game of cards at the
community center and then retire to a local bar to divvy up their gains and
losses based on their respective scores. While it would be impossible for the
County to prevent card players from converting their recreational card game,
after the fact, into a game where money was at stake, surely the County could
nonetheless prohibit card games where gambling was the stated goal from the
outset. Nor would we have any reason to doubt the County's genuine
commitment to limiting the community centers to non-gambling card playing
simply because certain card players were able to exchange their winnings and
losses after the fact.24

49

We conclude that Calvert County's denial of the plaintiffs' applications to use

the community centers for private educational classes intended to meet state
educational requirements is reasonable in light of the nature and purpose of the
community centers as places for recreation, community meetings, and informal
community enrichment and education.

2.
50

We now turn to consider whether the Board's exclusion of the plaintiffs is also
viewpoint-neutral. See Forbes, 523 U.S. at 676, 118 S.Ct. 1633 (government
cannot restrict access to a forum based on its agreement or disagreement with
the speaker's views). The plaintiffs first argue that the exclusion is viewpointbased because it discriminates against the "homeschooling" viewpoint. There is
nothing in the record, however, to suggest that the plaintiffs' proposed
instruction contained a particular or unique viewpoint in the areas of geography
or fiber arts, or in any other area that they might wish to offer classes. The
plaintiffs would presumably have shaped their courses according to their
particular pedagological goals, but they have not identified some viewpoint on
these (or other topics) that is unique them, to homeschoolers as a group, or to
private educators as a group.

51

In addition, even if the plaintiffs have a unique viewpoint on these or other

topics, the record shows that the Board's exclusion was not based on that
viewpoint. The plaintiffs would have been free to use the community centers to
teach the proposed classes from whatever particular viewpoint they may have
had, so long as the classes were not intended to meet state educational
requirements. There is no suggestion in the record that Calvert County intended
to discriminate against the "homeschooling perspective" or that its policy
demonstrates some widespread dislike or animus against homeschoolers.
Homeschoolers and homeschool groups have always been permitted to use the
community centers for any purpose other than as classrooms for formal private
education.25 In addition, the Board's policy against formal private education has
been applied to BFA, a private academy, as well as to homeschoolers.26
Because Calvert County's policy against permitting its community centers to be
used by private, independent, or homeschool groups as classrooms or schools
for the purpose of meeting state educational requirements is applicable without
reference to viewpoint, the policy is viewpoint neutral.

3.
52

The plaintiffs also object to the fact that the Board's exclusion of them in this
case is based on their purpose or intent in using the community centers. Such an
intent-based distinction, the plaintiffs argue, is either equivalent to, or equally
objectionable as, viewpoint-based discrimination. We disagree.

53

First of all, the plaintiffs err insofar as they equate a speaker's purpose with that
speaker's viewpoint. Purpose and viewpoint are simply two different concepts.
Two speakers could share the exact same viewpoint but have a different

purpose for their respective speech activities. In this case, for example, the
content and viewpoint of a permitted geography course could be the same as
that of an excluded geography course, even though the purpose of the two
courses was different the purpose of the permitted course would be general
community enrichment, whereas the purpose of the excluded course would be
private education intended to meet state educational requirements. Likewise,
two speakers could share the same purpose but have different viewpoints. Thus,
determining access to a forum on the basis of a speaker's purpose is not the
same as determining access based on the speaker's viewpoint.
54

Perhaps the plaintiffs are not arguing that purpose and viewpoint are the same,
but rather that distinctions based on purpose are equally offensive as those
based on viewpoint. The plaintiffs have cited no caselaw in support of this
supposed limitation on how the government may or may not restrict access to a
limited public forum, and we are not persuaded that purpose-based distinctions
are an impermissible basis for government restrictions. For example, our
discussion of Calash in part II.C demonstrates how a speaker's purpose in using
a forum can, in certain circumstances, serve as a legitimate basis for the
government to restrict access to a limited public forum. In Calash, the concert
promoter's purpose for holding an otherwise-identical concert profit versus
charitable goals changed the nature of that concert and determined whether
the concert was compatible with the purpose of the forum. 788 F.2d at 81, 84.
Because the stadium in Calash was limited to non-profit, charitable, or civic
purposes, a for-profit rock concert was not consistent with those purposes. Id. at
84. Here, because the community centers are limited to the purposes of
community recreation and informal enrichment, private instruction intended to
meet state educational requirements is not consistent with those purposes. In
both cases, the speaker's purpose alters the nature of the activity in a way that is
relevant to the limited purpose of the forum.

55

The language used by the Supreme Court in discussing permissible speakerbased distinctions in limited public fora also reflects a clear difference between
the concepts of purpose and viewpoint and suggests that it is permissible to
draw distinctions based on the former. The Court has explained that while
"restriction must not discriminate against speech [or speaker] on the basis of
viewpoint," the restriction is permissible so long as it is "`reasonable in light of
the purpose served by the forum.'" Good News Club, 533 U.S. at 106-07, 121
S.Ct. 2093 (quoting Cornelius, 473 U.S. at 806, 105 S.Ct. 3439) (emphasis
added). As this test makes clear, the government may limit a designated or
limited public forum to certain purposes, and exclude topics of speech or
classes of speakers that are inconsistent with that purpose. If the government is
permitted to restrict access to a forum in order to preserve the purpose of that

forum, it makes sense that the government can, depending on the

circumstances, prohibit use of the forum on the basis of the speaker's purpose.
Accordingly, we reject the plaintiffs' argument that the Board's denial of their
permit application based on their purpose or intent in using the forum amounts
to viewpoint discrimination or otherwise violates First Amendment principles.
E.
56

The plaintiffs present one final argument as to why their exclusion in this
particular case violates the First Amendment. The plaintiffs argue that even if
the state may generally draw status distinctions among speakers because their
intended use is inconsistent with the purpose of the forum, such status
distinctions may not be based on a speaker's exercise of a fundamental
constitutional right. Applying that rule to the case at hand, the plaintiffs argue
that their exclusion from the community centers is unconstitutional because it is
based on their attempts to educate their children as they see fit a recognized
fundamental constitutional right. See Pierce v. Society of Sisters, 268 U.S. 510,
534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925).

57

The plaintiffs find support for this novel proposition of constitutional law in the
Supreme Court's Good News Club decision. In Good News Club, the Milford
Central School denied the Good News Club, a private Christian organization
for children ages 6 to 12, permission to use the school cafeteria for weekly
after-school meetings, on the ground that the Club's proposed use amounted to
religious worship. 533 U.S. at 102-04, 121 S.Ct. 2093. The Court assumed, for
the sake of decision, that the school during these hours was a limited public
forum, id. at 106, 121 S.Ct. 2093, and held that "Milford's restriction violates
the Club's free speech rights." Id. at 102, 121 S.Ct. 2093.

58

The plaintiffs argue that Good News Club stands for the proposition that in a
limited public forum, the government cannot draw otherwise-permissible status
distinctions when the status in question involves the speaker's exercise of a
fundamental right. In Good News Club, the plaintiffs contend, the school was
simply making a status distinction between groups seeking to use the facilities
for secular purposes and groups seeking to use the facilities for religious
purposes. While this type of status distinction might otherwise be a valid
manner of restricting access to a limited public forum, the plaintiffs argue,
Good News Club illustrates that such distinctions cannot be based on the
speaker's exercise of a fundamental right in Good News Club, the
fundamental right to the free exercise of religion; here, the plaintiffs'
fundamental right to educate their children as they see fit. For the purposes of
this argument, the plaintiffs do not contend that Calvert County's policy

infringes on this fundamental right per se they acknowledge that they are
free to educate their children privately without using the community center.
Rather, the plaintiffs argue that Good News Club represents an independent
constitutional rule that depends on the intersection of First Amendment doctrine
and fundamental rights doctrine.
59

The plaintiffs have articulated an interesting and novel proposition of

constitutional law to explain the result reached by the Court in Good News
Club. Notably, however, it is not the rationale given by the Good News Club
Court majority itself to explain its decision. Rather than speaking in terms of
the plaintiffs' fundamental right to the free exercise of religion, the court in
Good News Club focused on "whether the exclusion constituted viewpoint
discrimination." Id. at 107, 121 S.Ct. 2093. The Court stated that "the Club
teaches morals and character development to children," a permissible activity
under the policy. Id. at 108, 121 S.Ct. 2093. The school excluded the Good
News Club, explained the Court, because the Club sought to teach "morals and
character development from a particular viewpoint" a religious viewpoint.
Id. at 111, 121 S.Ct. 2093. Accordingly, that exclusion "constitutes
impermissible viewpoint discrimination." Id. at 112, 121 S.Ct. 2093.

60

Thus, it is clear from the majority opinion in Good News Club that the decision
did not rest on the intersection of public forum doctrine and fundamental rights
jurisprudence. Rather, the majority reached its decision by applying previouslyestablished First Amendment doctrine viewpoint-neutrality to a new
factual scenario. We have already discussed and rejected the plaintiffs'
contention that their exclusion somehow amounts to discrimination against a
"homeschooling perspective." Having satisfied ourselves that exclusion of the
plaintiffs' proposed use is viewpoint-neutral, we are also satisfied that we are
following the dictates of Good News Club. We are content to take the Supreme
Court at its word that Good News Club is a case about viewpointdiscrimination. The plaintiffs' argument finds no support in the Supreme
Court's free speech jurisprudence, and we are not inclined to break new ground
ourselves. We therefore reject the plaintiffs' argument that otherwisepermissible status distinctions restricting the scope of a limited public forum
may not be drawn based on an activity which, incidentally, constitutes the
exercise of a fundamental right by the speaker.

III.
61

Apart from the plaintiffs' First Amendment claim, they also claim that Calvert
County's denial of their application to use the facility for homeschool courses
denies them equal protection of the law in violation of the Equal Protection

Clause of the Fourteenth Amendment. The Equal Protection Clause is a

"`direction that all persons similarly situated should be treated alike.'" Fisher v.
King, 232 F.3d 391, 399 (4th Cir.2000) (quoting City of Cleburne v. Cleburne
Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)).
Classifications based on race, national origin, alienage, sex, and illegitimacy
must survive heightened scrutiny in order to pass constitutional muster. City of
Cleburne, 473 U.S. at 440-41, 105 S.Ct. 3249. All other classifications need
only be rationally related to a legitimate state interest. Id. at 440, 105 S.Ct.
3249.
62

The plaintiffs claim that Calvert County's policy prohibiting private educational
activities intended to meet state educational requirements impermissibly
abridges their right to equal protection. The plaintiffs assert that Calvert
County's policy infringes on their fundamental right to direct the upbringing of
their children. See, e.g., Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054,
147 L.Ed.2d 49 (2000); Plyler v. Doe, 457 U.S. 202, 216-17, 102 S.Ct. 2382,
72 L.Ed.2d 786 (1982); Pierce, 268 U.S. at 534-35, 45 S.Ct. 571. The
plaintiffs, however, are free to homeschool their children in whichever manner
they choose, provided that they comply with Maryland's homeschooling law.
Calvert County's policy merely prohibits the plaintiffs, along with all other
private school entities, from using the community centers as private educational
centers. Homeschooled and other privately educated children are free to
participate in any and all Parks and Recreation programs at the community
centers and can even incidentally claim these activities in their portfolios to
fulfill state education requirements. The facts of this case simply do not
implicate the plaintiffs' freedom to make decisions concerning the care,
custody, and control of their children. Accordingly, Calvert County's policy
prohibiting private educational activities intended to meet state educational
requirements need only be rationally related to a legitimate government interest.
See Heller v. Doe, 509 U.S. 312, 319-20, 113 S.Ct. 2637, 125 L.Ed.2d 257
(1993); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir.1996).

63

"[T]he pertinent question for determining whether the governmental action

violated the Equal Protection Clause is whether [Calvert County] officials
reasonably could have believed that the action was rationally related to a
legitimate governmental interest." Front Royal & Warren County Indus. Park
Corp. v. Town of Front Royal, 135 F.3d 275, 290 (4th Cir. 1998) (emphasis
added). The stated government interests at stake are (1) Calvert County's
interest in maintaining the recreational character of the community centers; and
(2) Calvert County's interest in avoiding duplicative use of its resources. In light
of our discussion in part II, we have no trouble concluding that Calvert
County's exclusion is rationally related to these legitimate governmental

interests and does not violate the plaintiffs' Fourteenth Amendment right to
equal protection under the law.
IV.
64

Because Calvert County has not violated the plaintiffs' right to free speech
under the First Amendment or the plaintiffs' right to equal protection under the
Fourteenth Amendment, the judgment of the district court is

65

AFFIRMED.

Notes:
1

The four Calvert County community centers are: (1) Northeast Community
Center in the town of Chesapeake Beach; (2) Mt. Hope Community Center in
the town of Sunderland; (3) North Beach Community Center in the town of
North Beach; and (4) Southern Community Center in the town of Lusby

After litigation was commenced in this case, Calvert County modified its
written Use Policy to include the following "Prohibited Use":
(d) Instructional, educational and related enrichment activities of the type
usually offered in the public schools to children of school age, including
activities in English language arts (such as reading, writing, and spelling),
mathematics, science, social studies, art, music, health and physical education
are prohibited, it being intended that the community centers not be used for
such activities associated with meeting the State requirements for elementary or
secondary education. This prohibition does not apply to activities conducted by
any agency of the Calvert County Government, the Calvert County Public
Library or the Calvert County Board of Education.

With respect to the first accidental permitted use at the Northeast Community
Center, two separate Recreational Coordinators approved the homeschooling
instructional classes for the 1995-1996, 1996-1997, and 1997-1998 school
years. Both Recreational Coordinators testified in their depositions that they
were unaware at the time of Calvert County's policy against the use of
community centers for private educational classes for state educational credit.
The second accidental permitted use was by Janice Jones, a secretary, when
Diane Holloway, Southern Community Center's Recreation Coordinator, was
on vacation and did not have an assistant recreation coordinator

Under Maryland law, homeschoolers have three options to conduct

homeschooling: (1) under the supervision of a county superintendent of school;
(2) under the supervision of a church-operated educational program ("church
umbrella" school); or (3) under the supervision of a state-approved nonpublic
school. All homeschoolers are required to file a homeschooling form with their
County Board of Education. Designating a private umbrella school allows
parents to bypass all direct state regulation with the exception of filing the form
with the County
Homeschooling parents must maintain a portfolio, including "relevant materials
such as instructional materials, reading materials, and examples of the child's
writings, work sheets, workbooks, creative materials, and tests." This portfolio
is open to the inspection of the County Superintendent. The plaintiffs concede
that they intended to use the space in the Northeast Community Center to
engage in private educational activities that would fulfill state education
requirements and were intended to be claimed as such on their children's
portfolios.

At approximately the same time, Travers submitted a separate application on

behalf of "Chesapeake Home Educators" for use of the community center
facility for "regular monthly meetings of membership." Calvert County's initial
decision to deny this separate application was reversed and use of the center
was approved based on the fact that the meetings would not involve private
educational instruction

"This prohibition is made applicable to the States and local levels of

government by the Fourteenth Amendment."Edwards v. City of Goldsboro, 178
F.3d 231, 245 n. 10 (4th Cir. 1999).

Our use of the term "private" is not intended to imply that the proposed
homeschooling classes were open only to homeschoolers. While the plaintiffs
have stated that the proposed classes were intended to meet state educational
requirements and that they expected that most of the participants in the class to
be homeschool students using the classes for that purpose, they would not have
excluded non-homeschooling children from attending. Thus, we use the term
"private education" to mean education not affiliated with the public schools, not
education that is closed to non-homeschoolers

These "quintessential public forums" include public parks and streetsPerry, 460
U.S. at 45, 103 S.Ct. 948. The Supreme Court has also identified the "meeting
hall" as a traditional public forum. See Lehman v. City of Shaker Heights, 418
U.S. 298, 303, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974).

Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976).

10

United States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S.
114, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981).

11

Perry, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794.

12

Cornelius, 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567.

13

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d
592 (1988).

14

Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571.

15

Int'l Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 112 S.Ct. 2701
(1992).

16

Forbes, 523 U.S. 666, 118 S.Ct. 1633, 140 L.Ed.2d 875.

17

Widmar, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440.

18

Madison Joint Sch. Dist. v. Wisc. Employment Relations Comm'n, 429 U.S.
167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976).

19

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43

L.Ed.2d 448 (1975).

20

Good News Club, 533 U.S. at 106, 121 S.Ct. 2093; Lamb's Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S. 384, 392-93, 113 S.Ct. 2141, 124
L.Ed.2d 352 (1993).

21

Rosenberger, 515 U.S. at 829-30, 115 S.Ct. 2510.

22

As noted above, inWarren we treated designated and limited public fora as two
names for the same type of forum. If there is a distinction between the two,
however, we would classify the community centers as limited public fora. The
community centers are "reserv[ed] for certain groups ... [and] certain topics."
Good News Club, 533 U.S. at 106, 121 S.Ct. 2093. For case of reference, we
will refer to the Calvert County community centers as "limited public fora"
rather than the more cumbersome "designated/limited public fora,"
acknowledging that under the precedent set in Warren there is no practical
difference between a designated and a limited public forum, and that if we were
forced to choose between the two we would classify the community centers as
limited public fora.

23

We acknowledge that by looking to the purpose of the forum to determine

whether two proposed uses are of a similar character, we are blurring the lines
between the "similar character" inquiry and the "external standard" for
evaluating speech restrictions in a limited public forum both inquiries
involve, roughly speaking, a determination of whether the distinction drawn is
relevant to the purpose of the forum. The overlap in these inquiries, however, is
not a sufficient reason for us to reject this approach. We have observed a similar
overlap in other seemingly distinct doctrinal inquiries in the context of First
Amendment forum analysis. For example, inWarren we acknowledged that the
similarity between the external standard for speech restrictions in a limited
public forum and the standard for speech restrictions in a nonpublic forum "in
effect makes the limited public forum analytically indistinct from a nonpublic
forum. If it is reasonable (or unreasonable) to exclude a speaker from a
nonpublic forum, then it must also be reasonable (or unreasonable) to exclude
the speaker from the class of speakers to which the forum has been opened on a
limited basis." Warren, 196 F.3d at 194 n. 8. As in Warren, we find some
overlap in analysis unavoidable in this circumstance.

24

We acknowledge that it is unlikely, to say the least, that recreational cardplaying is a form of expressive conduct protected by the First Amendment. The
purpose of this example is simply to illustrate that the boundary-drawing
problem identified by the plaintiffs is not limited to the context of formal versus
informal education, and that the problem should not suggest that the boundary
drawn is impermissible or illusory

25

As noted above, Calvert County approved the following applications by

homeschool groups to use the community centers in the following ways: (1) the
Chesapeake Home Educators, a homeschool group led by Travers, was
permitted to use the Northeast Community Center once a month for three hours
for the group's membership meeting; (2) Christian Home Educators Network
was permitted to use the Southern Community Center for a meeting held from
6:30 p.m. to 9:30 p.m. on Tuesday evenings; (3) Travers was permitted to use
the North Beach Community Center for a formal Christmas dinner for
homeschoolers; (4) Share Homeschool Group was permitted to hold a
Valentine's Day party for homeschooled students at Southern Community
Center; and (5) a private school called the Tidewater School was permitted to
use the Southern Community Center for a "Jumprope for Heart" fundraiser for
the American Heart Association

26

The plaintiffs contend that BFA's application for use is distinguishable from the
proposed use in this case because the Board could have denied BFA's
application based on BFA's status as a for-profit organization as well as based
on time, place, and manner restrictions. While this may be true, it does not

change the fact that the Board did not cite either of these reasons in its denial of
BFA's application; rather, the Board denied BFA's application because BFA's
proposed use did not comport with the purpose of the community centers.
Accordingly, the manner in which the Board denied BFA's application
illustrates that the Board's policy against private formal education did not arise
in the context of homeschooling and applies equally to homeschoolers and
private academies

66

NIEMEYER, Circuit Judge, concurring in part, dissenting in part, and

concurring in the judgment.

67

The plaintiffs in this case seek to use the Calvert County Northeast Community
Center in Chesapeake Beach, Maryland, as a place for conducting their
homeschooling to meet Maryland State educational requirements. They were
denied this request because the place provided by Calvert County for formal
elementary and secondary education is at public schools provided by the
Calvert County Board of Education, and Calvert County did not intend to let the
community center function as a school designed to meet State educational
requirements. As the Board of County Commissioners of Calvert County
explained to the plaintiffs:

68

Community centers are designed and built for the recreational needs of the
community at large. We do not want to devote space in the centers for
educational activities associated with meeting the State requirements for
elementary or secondary education. We are meeting those needs through our
funding of the Calvert County Board of Education. We believe that allowing
the centers to be used for formal education would amount to duplication of
services.

69

The plaintiffs contend that the county's position violates their right of free
speech as protected by the First Amendment. I disagree. The county has not,
even by implication, challenged what the plaintiffs can teach or what their
students can learn at any location in the county, including at the Calvert County
Northeast Community Center. While the substance of matters taught in
homeschooling may be protected speech, as noted by Judge Goodwin in Part
II.A, ante, the county's regulation does not aim in any way at what is taught,
what is learned, or even how any subject matter is taught. To conclude that the
county's regulation of the use of its community center is a regulation of speech
would convert every governmental use regulation of public spaces into a First
Amendment issue. I agree with the district judge's conclusion that the
regulation in this case does not implicate the First Amendment. Accordingly, I
respectfully dissent from Parts II.A and II.B of Judge Goodwin's fine opinion.

70

Because two of my colleagues conclude that the First Amendment is

implicated, I consider the issues that follow therefrom and concur in the
subsequent First Amendment discussions in Parts II.C, II.D, and II.E of Judge
Goodwin's opinion. I also concur in Parts I, III, and IV and in the judgment.